The unbundled union: politics without collective bargaining.

• Author: Sachs, Benjamin I.
• Position: Introduction through II. Unions and Representational Inequality B. Organizing Through Work, p. 148-176

ESSAY CONTENTS INTRODUCTION I. REPRESENTATIONAL INEQUALITY A. Income and Responsiveness B. Addressing the Problem: From Finance to Organization II. UNIONS AND REPRESENTATIONAL INEQUALITY A. Unions and Politics B. Organizing Through Work C. Collective Bargaining and Union Decline III. THE UNBUNDLED UNION: LIBERATING POLITICS FROM COLLECTIVE BARGAINING A. Improving Prospects for Organizing: Diminishing and Altering Managerial Opposition B. Political Organizing Without Collective Bargaining? IV. LAW AND ORGANIZING: DESIGNING AN UNBUNDLED REGIME V. BEYOND THE WORKPLACE CONCLUSION INTRODUCTION

It is a good time to be wealthy in America and a tough time not to be. This is true not only because of the well-known economic problems facing low- and middle-income Americans. It is true because the poor and middle class have a major political problem today. The problem is that the government is strikingly unresponsive to their views. (1) As Martin Gilens concludes in his study of contemporary American politics, "the preferences of the vast majority of Americans appear to have essentially no impact on which policies the government does or doesn't adopt." (2)

No government, of course, is perfectly responsive to its citizenry, and perfect responsiveness is not even an aspiration of our democratic order. (3) But it remains a fundamental democratic commitment that policies enacted by the government reflect the preferences of the polity. To borrow Dahl's formulation, "a key characteristic of a democracy is the continuing responsiveness of the government to the preferences of its citizens, considered as political equals." (4) The degree of representational inequality that currently defines American political practice is thus a matter of substantial concern.

The wealthy have disproportionate influence over public policy because, to state the obvious, they have more money. (5) Because it is the wealthy who make campaign contributions, fund independent electoral expenditures, and pay for lobbyists, policy is more responsive to those with money than to those without it. (6) Given the political influence that wealth bestows, scholars and Congress have understandably focused political reform proposals on campaign finance. (7) But these attempts to get money out of politics have devolved into a cat-and-mouse game in which political actors bent on avoiding regulation, and a Supreme Court bent on invalidating it, have rendered the reforms ineffectual. (8) After all, the Court has now struck down all forms of independent expenditure limitations, and political actors have designed ways to frustrate even the most creative restraints on campaign spending. (9)

Fortunately, however, money is not the only source of influence in American politics. Political power also flows from political organization, and organization is a source of power available to all income groups. (10) As this Essay will suggest, legal interventions designed to facilitate political organizing by the poor and middle class are thus a viable alternative to campaign finance reforms and a promising means of redressing representational inequality.

In the United States, the legal regime that has most successfully facilitated lower- and middle-class political organizing has been labor law, and the labor union has been a critical vehicle for lower- and middle-class political organization. (11) At the peak of union strength, more than twenty million Americans-nearly all within the income classes for whom representational inequality is now a problem-exercised collective political voice through the union form. (12) Unions have successfully mobilized their memberships to vote, and, by aggregating millions of small-dollar donations from these members, have built effective lobbying operations, led extensive independent electoral efforts, and positioned themselves as leading campaign contributors. (13) At times and on certain issues, unions have been politically liberal; at other times and on other issues, they have taken conservative--even reactionary--positions. (14) But, when they were active and strong, unions helped ensure that the government was responsive to the actual preferences of the poor and middle class. (15)

Today, however, labor unions face a major obstacle to their ability to organize workers politically. The obstacle derives from the fact that unions bundle political organization with a specific and highly contested form of economic organization. Under our labor law regime, that is, unionization requires workers to organize for the purpose of collective bargaining with their employers in order to organize for political action.

From the perspective of political organization, this is a problem, and for several reasons. First, in recent years, managerial opposition to collective bargaining has become widespread and highly effective, and this opposition has made traditional union organizing difficult and increasingly rare. (16) Second, changes in the structure of markets and the way work is organized have made collective bargaining hard to sustain in the contemporary economy. (17) And, third, at most, only about half of all workers now want to engage in collective bargaining, meaning that unions are not a viable political vehicle for approximately half of the labor force. (18)

These obstacles that collective bargaining poses to the viability of unions have contributed to a sharp decline in unionization rates. From a peak of thirty-five percent in the mid-1950s, (19) unions now represent less than seven percent of private sector workers. (20) And this decline in unionization rates has, in turn, contributed significantly to the declining responsiveness of American politics to the poor and middle class. (21)

For decades, scholars and policymakers have been proposing ways to reform labor law in order to better facilitate unionization. (22) If our goal, however, is not to increase the prevalence of collective bargaining but, instead, to facilitate political organizing among politically underrepresented groups, then there is a new possibility for reform. Namely, we could unbundle the collective bargaining and political functions of unions and allow employees to organize politically through the union form without also organizing economically for collective bargaining.

In fact, there is nothing in the nature of unionization that requires the bundling of economic and political functions. Bundling is instead an artifact of history and, more to the point, of law. Workers who sought to improve workplace conditions through collective bargaining often turned to politics to achieve similar goals, and they found that their unions were well suited to act as collective political agents. Contemporary labor law reflects this historical practice of bundling and perpetuates it. (23) But, while bundling has made sense in certain contexts, nothing in the history of the union movement suggests that collective bargaining and political action must go together. Moreover, the legal regime that has required a bundling of political and economic functions could just as well allow employees to organize unions for political purposes but not collective bargaining ones.

An unbundled labor law would allow workers engaged in new organizing efforts to form either a traditional union or what this Essay will name a "political union." (24) Political unions would be barred by statute from engaging in collective bargaining, but they would be able to serve as a vehicle for collective political voice for workers who decided to join the union. Unlike traditional unions, political unions would-for reasons this Essay will discuss- represent only workers who affirmatively desired to join and support the union: mandatory membership or mandatory dues payment arrangements of any kind would be out of place in this context. (25)

As this Essay will explain, the statutory work of unbundling would not be terribly complex. But an unbundled labor law would nonetheless have a critical role to play in facilitating the organization of political unions. In brief, traditional labor law has done four key things to enable workers to use the employment relationship as a locus for organizational activity and thereby to overcome what would otherwise be potentially insurmountable collective action problems. (26) First, labor law allows workers to use the workplace as a geographic site for organizational activity, thereby significantly decreasing the coordination costs of organizing. Second, labor law allows unions to harness the employer's administrative capacity-in particular, its payroll function-to fund union operations. (27) Third, labor law allows unions to use the employer's informational resources-in particular, data about employees-for organizational purposes, thus dramatically reducing the information costs of organizing. And, fourth, labor law prohibits employers from retaliating against employees engaged in organizational activity...